' KHALID MEHMOOD, J.---This revision petition under section 115. C.P.C. Is directed against the judgment and decree dated 10-6-2005, whereby learned Additional District Judge-II, Mansehra accepted the appeal of respondents and decreed the pre-emption suit of respondents by setting aside judgment" and decree of Civil Judge-II, Mansehra dated 20-12-2004.
2. 'Respondents filed a suit for possession through pre-emption with respect to properly fully described in the heading of plaint against petitioners on the basis of co-sharer ship contiguity and participators of immunities of the property. Respondents appeared and contested the suit by filing written statement and learned Civil Judge after recording evidence and hearing the parties vide judgment and decree dated 20-12-2004 dismissed the suit of respondents. Feeling aggrieved, respondents preferred appeal and learned appellate Court after hearing the Parties accepted the, appeal and decreed the pre-emption suit of respondents. Feeling aggrieved, the petitioners have filed instant revision petition.
3. Learned counsel for petitioners argued that petitioner No,2 was minor and issuance of notice talb-e-lishhad and filing of suit against minor without next friend is illegal. It was argued that respondents failed to prove -the requisite talbs in accordance with law and learned appellate Court has wrongly and illegally passed decree in favour of respondents which is the result of gross misreading and non-reading of evidence On record, therefore, are liable to be set aside and well- reasoned judgment and decree of trial is liable to be restored.
4. Learned counsel, for respondents opposed the arguments advanced by learned counsel for petitioners and supported the impugned judgment and decree of the court below. It was argued that respondents had performed the requisite talbs in accordance with law and having superior rights of pre-emption as compared to petitioners were rightly granted decree by the Court below.
5. Arguments heard and record perused.
6. Present case suit has been filed by four pre-emptors/ respondents. All of them were admittedly present in the Majlis, which was held on 23-6-2002 and, they got information from the informer, namely, Taj Muhammad. However, only one plaintiff/respondent, namely, Muhammad Afzal respondent No,1 (P. W.9) appeared in Court as his own witness and on behalf of others as their attorney. It was vehemently argued by the petitioner that attorney in a pre-emption case cannot appear on behalf of other pre-emptors as the statement of such an attorney has no credibility if other pre-emptors do not appear in the witness box in support of their claims especially regarding substantiation of factum of talbs. It was also argued that being obligatory every preemptor is required to appear in person for recording his statement regarding performance of talbs.
7. In the instant case, it is an admitted fact that all the pre-emptors are residing in one and the same house and all of them on hearing about A the impugned sale transaction had performed talb-e-muwathibat in the same meeting at the relevant date, tinie and place. All the cases referred relate to the different facts. Though it is incumbent upon the preemptors, who appointed their attorney, to explain their inabilities to appear in person before the Court. But in the present case this fact has been disclosed by P.W.7 Javed Farman in his statement, which went unshattered though he was subjected to lengthy cross-examination. The statement of attorney/plaintiff has been supported by the other witnesses including the informer, who authenticated the performance of talb-emuwathibat. Petitioner failed to point out any material contradiction in the entire evidence to shatter the performance of talbs, hence, both the Courts below have rightly held that talbs have been performed , in accordance with law.
8. The next question which was also argued by the petitioner was that due to non-appearance of other plaintiffs in support of their assertions regarding performance of talbs the suit,' on the principle of sinker, is liable to be dismissed. He has relied upon the case of "Qadir Bux and others v.- Nawaz Ali and others" (2003 YLR 974), "Mst. Hassan Bano v. Wali ur Rehman and 2 others" (2007 SCM R 1344) and Dilshad Begum v. Mst. Nisar Akhtar reported as 2012 SCM R 1106.
9. In the above stated cases, the attorneys, appeared on behalf of plaintiffs/pre-emptors without assigning any reason regarding their non-appearance, hence, suits were dismissed coupled with the other evidence.
Whereas in the present case the three pre-emptors are nephews of Afzal Khan plaintiff/attorney and all of them were present at the time of performance of talbs. The reasons for non-appearance of three preemptors have been explained by P.W.7 in his statement wherein he has stated that pre- emptors Abid Ali and Muhammad Naeem are Bank employees whereas Muhammad Azam is college student. The petitioner failed to point out any contradiction regarding the performance of talbs when the other corroboratory evidence i,e, witnesses of talb-emuwathibat and talb-e-ishhad, post office officials were produced by the respondents, though they were subjected to lengthy cross-examinations but nothing was brought on record which favours the stance of the petitioner.
As under Order X Rules 2 and 3, C.P.C. An attorney can be appointed by a party to defend or support the cause of the principal(s). Moreover, under section 14 of the Pre-emption Act specific law has been incorporated wherein an attorney can be appointed by the pre-emptor and also guardian can file a suit for pre-emption on behalf of minor pre.Emptor and to save, defend or support the cause and rights of minor or any other person having right of pre-emption and such pre-emptor can exercise his right by appointing attorney. The legislature was wise enough and has provided this faCility to a pre-emptor, who is unable to appear in the Court for defence of his right.
In this respect section 14 of N.-W.F.P. Pre-emption Act, 1987 provides:-- "14. Demands by the guardian or agent. ---Demands by the guardian or agent. ---Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf".
10. Counsel for the petitioner vehemently argued that due to nonappearance of other co-pre- emptors law of sinker will be applicable and on this score too suit of the respondents is liable to be dismissed. In the Pre-emption Act, 1950 section 18 was inserted under which pre-emptor having superior right of pre-emption joins other pre-emptors having inferior or equal right of pre-emption as compared to vendee defendant, such suit will be liable to be dismissed on the principle of sinker. So far as law of sinker is concerned, there is no provision laid down in the present law of pre- emption, that even if -one of the pre-emptors, who happened to be attorney of other pre-emptors by observing all formalities and caution proves such suit be dismissed on the ground that the other co-pre-emptors failed to appear though reasons or their non-appearance are also rendered.
11. In the present case all the pre-emptors having equal right of preemption, which has been admitted by both the Courts below, after thrashing the evidence so produced by the parties had decreed the suit. The appointment of attorney to safeguard the interest of pre-emptor and to defend or support the cause of pre-emptor, the criteria should be considered as under:- Firstly; if pre-emptor is abroad or residing at a far flung area or due to circumstances beyond his control, he can appoint an attorney and the attorney so appointed should have been expressly empowered for the performance of talbs on behalf of the pre-emptor.
' Secondly; if attorney so appointed was present in the Majlis where talb-e-muwathibat was, performed and who also had personal knowledge of performance of notice talb-e-ishhad, ' Thirdly; in support of the statement of attorney other evidence should also be produced for corroboration of the testimony of said attorney; and ' Fourthly; the cogent reasons i,e, minority, serious illness, parda-nashin and inability of pre-emptor to, appear before the Court should be brought into the notice of the Court so that plea of inability of pre-emptor could satisfy the Court and after that evidence of attorney can be considered.
12. I am' afraid that if the contention of the petitioner that in any case attorney cannot appear in the witness box in order to prove or D defend the cause of the pre-emptor is considered, the very theme of appointment of attorney will stand abolished/ deleted and offend the clear provisions of Pre-emption Act. In the referred cases where the statement of attorney was not considered had different stories as in the cited cases the attorneys were not specifically and expressly authorized to give the statement on behalf of his/their principal (s). Moreover, the said attorney was not in the knowledge of the performance of talbs nor the reason of non-appearance of pre-emptor/principal was rendered.
13. In the present case the attorney himself is a pre-emptor and was also in knowledge of the performance of talbs and actually participated in the performance of talb-e-muwathibat and talb-e-ishhad. The reasons for non-appearance of other co-pre-emptors have also been disclosed in the statement of pre-emptor/attorney.
14. In the wake of what has been discussed above, it is held that the learned appellate Court on 'appraisal of legal and factual aspects of the case has rightly passed the impugned judgment and decree, which in the facts and circumstances of the case needs no interference and is hereby maintained.
15. Consequently, this revision petition being bereft of merit is hereby dismissed with no order as to costs.